Q. Just wondering what your thoughts are on a Flying Freehold? I’ve seen a gorgeous house that I am seriously considering buying but everyone around me says I shouldn’t touch it with a barge pole?! Can you enlighten me?
A. Flying freehold is an English legal term to describe a freehold which overhangs or underlies another freehold. Common cases include a room situated above a shared passageway in a semi-detached house, or a balcony which extends over a neighbouring property. Flying freeholds are notoriously unsatisfactory from a legal point of view. This is primarily due to the inability of one freeholder to enforce positive covenants against another, which has traditionally not been possible under English law. If for example scaffolding needs to be erected on the land beneath the flying freehold: the landowner’s consent will be required and he may refuse, or want to charge a premium. If the work is necessary it may be possible to obtain a court order under the Access to Neighbouring Land Act 1992, but there are costs and uncertainties involved, and the situation could be even worse if the structure beneath is unregistered land and the identity of the owner is unclear. These concerns mean that mortgage lenders usually want more detail on the property before approving mortgages etc. The approach by lenders varies greatly. Some lenders are wary of flying freeholds and refuse to lend on these at all while others appreciate that this is a common occurrence and act accordingly. When considering a mortgage application for a property with flying freehold the extent to which the property extends over a neighbouring property may also be considered before approving an application so do discuss this with your lender prior to making an offer to avoid losing money. Ideally there should be some legal framework which obliges the current owner of each property to repair their part of the building, with appropriate cross-rights of support and access. In practical terms a flying freehold may not be a problem as neighbours do usually repair their properties. Indeed many sellers have been blissfully unaware that there was a flying freehold issue until they come to try and sell the property. Only then does the despair and frustration set in as the buyer, their lender and advisers give careful consideration as to whether they should involve themselves with such complications.